How’s This Federalism Thing Work Again?

Same-sex marriage and marijuana legalization won a series of referenda on Tuesday, and good partisans of Federalism should, presumably, cheer. Where does the Constitution say that the Federal Government should have any opinion about personal status law? Where does the Constitution say that the Federal Government should have any opinion about control of mind-altering substances?

Except . . . it’s very hard for me to see how the Federal Government can avoid getting involved.

Federal law contains a variety of preferences for people in a state of matrimony. Refusing to recognize a duly solemnized and legal marriage in Maine or Washington is plainly to have an opinion about personal status – and one that conflicts with the states in question. Recognizing such marriages means giving them national legitimacy – again, that’s the Federal Government offering an opinion.

Advocates for marijuana legalization are fretting now about the DEA disregarding the opinion of the voters in Colorado and Washington – with good reason given the behavior of the Obama DEA in response to much more limited medical marijuana laws in states like California. But the alternative would be something akin to national decriminalization. There’s no customs post in Nebraska to inspect the luggage of visitors to Colorado, after all.

I happen to support national recognition of same-sex marriages, because I think the states should be allowed to innovate in this manner, and the Federal Government should not register a contrary opinion. (For that matter, I also favored the same-sex marriage law in my state, New York.) But I’m not deluded that this formal neutrality isn’t a substantive endorsement. I also happen to support marijuana decriminalization. But, again, I’m not deluded into thinking that legalization in one state won’t make it difficult to impossible to enforce prohibition in a neighboring state. In such a way, a handful of states, if their sovereignty is taken seriously, can change national policy.

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12 Responses to How’s This Federalism Thing Work Again?

Re: I also happen to support marijuana decriminalization. But, again, I’m not deluded into thinking that legalization in one state won’t make it difficult to impossible to enforce prohibition in a neighboring state

Been there done that. After Prohibition ended nationally a number of states kept a ban on alcohol; and after all 50 states repealed Prohibition counties and municipalities continued their own local bans (and more than a few still have them). The situation did not turn into a legal nightmare.
The marriage matter is more far likely to cause serious interstate triubles.

Noah, the 21st Amendment set the parameters to allow states to prohibit, or regulate, or not, the production, sale and consumption of beverage alcohol, free of Federal interference, and that has worked very well, from the standpoint of federalism. The same can be done to divest Washington of similar jurisdiction over other controlled substances. In fact, as there was no Prohibition Amendment for anything other than alcohol, no new Amendment to end the present regime should be necessary.

Federal government recognition of marriage, traditional or otherwise, would not be at issue if it weren’t for programs of taxation and benefit payments that shouldn’t exist in the first place. But, presuming we can’t repeal Social Security and the Income Tax in a day, we can restructure the applicable categories to make them value neutral. For instance, instead of fixing income tax schedules for married and unmarried individuals, filing singly or jointly, fix schedules for taxation of income flowing into households, living units in which one, two, or many people may reside, some with taxable income, some without, some dependents, others not, and questions of marriage and kinship need never enter the lexicon of the Federal Law. Likewise, designation of beneficiaries under Federal programs that allow the same need neither note nor require that said beneficiaries fill the category of spouse.

There was a time when the law recognized and sought to protect marriages as God’s ordained institution for the birth, growth and maturation of human children. As that no longer seems to be our current understanding of marriage (see today’s column on the subject by Rod Dreher), the reason for the government to regulate, protect, or even give it recognition may also have passed.

The “no customs post” thing is a bit of a red herring. Germany and Belgium have no customs posts with the Netherlands, and yet these states manage to enforce their anti-drug legislation with fewer problems than you’d think. Don’t see why Nebraska and Wyoming couldn’t do the same.

The whole “state legalisation of marijuana creates an enforcement problem for other states” argument seems to ignore the fact that there already is a multibillion dollar black market across our entire continent. Law enforcememt has failed utterly to keep the drug supply from crossing state lines (because you cant legislate or socially engineer away the demand), so it matters not where that supply comes from. That supply is going to be there and the drug war will always be a losing battle. Having a white market next to your black market might change where the supply comes from, but the demand exist regardless.

Under the status quo, marijuana traverses state borders so frequently that California and Mexican marijuana can be purchased all over the west at minimum. Do New Yorkers get California weed? I have no idea, but I’m certain they get it across state lines. It isn’t at all obvious to me that legal weed in one state would force another state to embrace the same policy. There is already an interstate weed market. It just happens to be illegal.

The Federal Government should simply recognize any marriage that was validly contracted in any state or territory of the Union. That would be federalism, and no, not a legal nightmare either as it was the principle during them any years that some state had interracial marriage bans and some did not.

Lambic head: Yes, there are agricultural inspection stations when driving into Florida, though cars are not required to check in just trucks. And if you travel to and from Hawaii there’s an inspection process as well for plants, plant foods, and animals.

Conor: you and I agree that we should change the Federal policy and end the war on pot. But assume the position of someone who didn’t agree. We spend a huge amount of money and energy trying to stop pot from coming into the country. We fail – massively – but we keep trying. If Colorado becomes a legal point for distribution, then basically that effort becomes completely futile. Doesn’t it? And if it does, then isn’t it obvious that single-state legalization changes the national picture?

Similarly with gay marriage. I favor the repeal of DoMA and Federal recognition of all duly solemnized marriages. And I’m not saying that it would be a legal nightmare to do so – it would be extremely straightforward. I’m just saying that the neutral position of Federal nondiscrimination – which I favor – would have a big impact nationally, not just in the states that have already approved gay marriage.

All I’m saying is that, in practice, in a nation as mobile as ours, a lot of issues become national whatever level of government is nominally responsible for dealing with them. In both of these cases, I favor the decentralist position – but I also favor the liberal position. I don’t think that’s a coincidence. Similarly, conservatives favor a decentralist position on a variety of economic matters, and they also favor lower taxes and spending. And that’s not a coincidence either – it’s easy to move from state to state, so interstate competition on taxes and spending would be expected to keep both relatively lower than they would be if the Feds did more of the taxing and spending. The same kind of competition obtains between countries, but it’s more attenuated because switching countries is a bigger deal than switching states. (For people, anyway; less-so for capital.)

“Advocates for marijuana legalization are fretting now about the DEA disregarding the opinion of the voters in Colorado and Washington – with good reason given the behavior of the Obama DEA in response to much more limited medical marijuana laws in states like California. But the alternative would be something akin to national decriminalization. There’s no customs post in Nebraska to inspect the luggage of visitors to Colorado, after all.”

The legal question here doesn’t seem that complicated. The DEA enforces federal law, and as the Supreme Court held in Gonzalez v. Raich, it can enforce federal drug laws even in cases where the target is growing marijuana for personal use, and doing so in a state where it’s legal. If the federal government begins to notice that Colorado is becoming a national center for the distribution of federally-banned drugs across state lines, they’ll have ample legal authority to crack down on it.

As a practical matter that kind of crack-down might be made more difficult by a lack of local cooperation, but given the decades-long shit-show that we call the War on Drugs I’m not sure the difference would be all that noticeable. Is there such a thing as “even more futile than totally futile”?

Will decriminalization at the state level make it difficult for other states to restrict marijuana use? Probably, but states do plenty of things that have spill-over effects and yet are uncontroversially permitted as part of the federalist approach (e.g., setting their regulatory policies, tax policies and wage floors to attract businesses from other states).

The 10th Amendment is the framework for a whole host of issues to be dealt with by the states and not the federal government. Abortion, marijuana and SSM should all fall under it’s perview. For reasons unknown no GOP candidate ever bothers to frame things in such context, probably because truly limited constitutional governance is alien to them. When Obama prattled on about hiring 100K teachers, he needed to be hit in the head with the 10th Amendment shovel, how education has always been a state -administered issue. Instead Romney babbled about shcool choice . Go freaking figure.

DavidT – including infertile couples in the ambit of legally recognized marriages protects the institution for all married couples. The primary function of marriage laws is to punish those who break their marriage vows, by adultery, desertion, or nonsupport (both material and conjugal). Infertile persons usually still have sexual desires. Channeling those who have such desires into their own marriages removes them from the category of those single persons readily available to lure others away from their marriages. Solemnizing a same sex union, even applying sanctions, legal or economic, against those who may come to think better of and break such bonds, has the reverse effect – it removes from society even fertile people who might get married and have children if they weren’t then barred from doing so.

Noah, having one state allow the sale and use of any substance always offers a temptation to those in other states whose people are generally of a mind to prohibit those substances. One town in the Netherlands, very close to German and Belgian borders, where the consumption of marijuana in “coffee shops” is legal, found that it had become a magnet for foreigners wishing to imbibe, a tourist base the town discovered was less than desirable. So they simply enacted an ordinance forbidding such establishments from serving foreigners. The 21st Amendment similarly allows states to limit commerce in alcohol to its own citizens, which without it would be forbidden by the Constitution. Congress could, under the Commerce Clause, enact similar legislation to restrict the sale or use of certain substances to the residents of those states where it is allowed. Violation of that statute could then be punished as a federal offense, without abridging the rights of people in those states who have asserted such freedom of indulgence from exercising it.

Ultimately, though, unless one is living in or enforcing the law in a state like Utah, in which a majority of the population eschew the use of alcohol (although I believe sale of alcoholic beverages is legal even there), the prospects of a state successfully enforcing such laws will prove as futile as it is for the nation as a whole, and it is better to abandon the effort except through taxation of the product.

Requiring non-same sex marriage states to recognize such unions solemnized in states that give them recognition (under the Full Faith and Credit Clause) creates a similar situation that arose in 1940’s, when Nevada started offering “quickie divorces” to persons who had “established residence” after only a brief period and without their spouse. It, in truth, made it impossible for other states to effectively enforce its laws restricting divorce and thereby removed the protection of marriage those laws were intended to afford. The result was that all states were obliged to enact “no fault” divorce laws of one sort or another. The primary purpose of DOMA was to prevent the use of the Full Faith and Credit Clause from being used to create the same situation with respect to same sex “marriages”. The Congress knew that it would be intolerable for one state to force its laws and mores onto the other forty-nine. As the idea of “same sex marriage” becomes less intolerable nationwide, and opposition to it moreso, Congress may be persuaded to repeal DOMA (unless the courts succeed in doing it first) and force the new majority opinion upon the whole of the country – the precise end the principle of federalism was designed to prevent.